No. 65.
Mr. Bayard to Mr. Hall.

No. 409.]

Sir: I have received your No. 574 of the 27th ultimo, transmitting a copy and translation of a law of Salvador promulgated on the 29th of September last in relation to the general subject of citizenship and to the status of foreigners in that Republic.

[Page 79]

Before commenting upon Articles 39, 40, and 41 of this law, to which you specially invite the attention of the Department, I desire to advert to several other provisions which as substantially embodied in the code of Mexico have been the subject of frequent discussion in our diplomatic correspondence. I refer to the provisions of Chapter III of the Salvadorian law which relate to the process and effects of matriculation.

The matriculation of foreigners as defined in Article 21 of this chapter is an inscription of their names and nationalities in a book kept for that purpose in the department for foreign affairs. In order to be so registered, they must produce to that department certin evidence, prescribed by law, of their right to the national status claimed. If the requisite evidence be exhibited, the name and nationality of the applicant are registered, and in proof of this, he is given a certificate of matriculation which is, however only prima facie evidence of his national status. But without this certificate no authority or public functionary of Salvador is permitted to recognize a foreigner’s nationality (Chapter III, Article 26).

Upon the score of mere convenience it is evident how inexpedient as a matter of policy, in the present age of enlarged and liberal intercourse and of extensive commercial transactions, are municipal regulations which tend to impede and restrict the movements and business operations of foreigners.

But the law in question, as understood by this Department, goes beyond considerations of convenience, and raises important questions of international right. By Article 28, Chapter III, it is provided that matriculation concedes privileges and imposes special obligations which are called by the laws of the Republic “the rights of foreigners.” These rights of foreigners, as stated in Article 29 of the same chapter, are as follows:

To appeal to the treaties and conventions existing between Salvador and their respective Governments.
To have recourse to the protection of their sovereign through the medium of diplomatic representation.
The benefit of reciprocity.

Unless a foreigner possesses a certificate of matriculation, no authority or public functionary of Salvador, as has been seen, is permitted to concede to him any of these rights; and it is further provided in Article 27 of the chapter in question, that the certificate of matriculation shall not operate retroactively upon a claim of right arising anterior to the date of matriculation. Thus the object and purport of the law in question is to make the enjoyment and assertion by a foreigner in Salvador of the consequent rights and privileges of his national character, whether they are guarantied by treaty or secured by the general rules of international law, conditional upon his contemporaneous possession of a paper prescribed by the municipal law of the country as the proper proof of his citizenship.

In order to appreciate the significance of such a requirement, it is only necessary to consider that, if admitted, its effect would be to leave the question of the national status of a foreigner wholly to the determination of the Salvadorian authorities, and that, in the event of his failure to exhibit such proofs of citizenship as they may deem sufficient, his right to claim the protection of his Government would be lost. Conversely the right of his Government to interpose in his behalf would also be destroyed; for to deny to a foreigner recourse to his Government, by necessary implication, questions and denies the right of that Government to intervene.

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Thus, by making the compliance of a foreigner with a municipal regulation a condition precedent to the recognition of his national character, the Salvadorian Government not only assumes to be the sole judge of-his status, but also imposes upon him as the penalty of non-compliance a virtual loss of citizenship.

Nothing would seem to be required beyond the mere statement of these propositions, fully sustained as they appear to be by the context of the law in question, to confirm the conviction that its enforcement would give rise to continual and probably grave controversies. Such has been the result of the occasional attempts elsewhere than Salvador to enforce similar regulations, and such would seem to be the necessary result of the attempt of particular Governments to enforce laws which operate as a restriction upon the exercise and performance both by states and by citizens of their relative rights and duties, according to the generally accepted rules of international intercourse. Such intercourse should always be characterized by the utmost confidence in the good faith of nations, and by the careful abstinence of each from the adoption of measures which, by operating as a special restriction upon the action of other Governments in matters in which they have an important if not the chief concern, seem to imply distrust of their intentions. It is proper to observe that the Government of Mexico, guided by the experience of an ample trial of her law of matriculation, modified it in June last by the repeal of those provisions which made the matriculation of foreigners compulsory and a condition of the exercise of their right of appeal to their Government.

It may be said that the question of citizenship is one which peculiarly concerns the Government whose protection is claimed and in the decision of which that Government has a paramount sovereign right. This results not only from the relation of a Government to its citizens, but from the fact that international law recognizes the right of each state to prescribe the conditions of citizenship therein and regulate for itself the process whereby foreigners may, if they so desire, expatriate themselves and become naturalized. In the United States this process is defined by a statute, the administration of which is committed to the courts, who issue to the naturalized citizen certain evidence of his compliance with the law. The efficiency of this law, the basal principle of which is the voluntary action of the alien, is fully recognized by all states that concede the right of expatriation, and among these is Salvador.

The principle and validity of our naturalization law being thus admitted, it would seem that the mere question of its administration and of the proper evidence of its administration was one for the determination of this Government. But by the matriculation law of Salvador that Government is made the first and the final judge of the sufficiency of the evidence of American citizenship, even in the case of a naturalized citizen of the United States not of Salvadorian origin.

In this relation it is pertinent to advert to the recent case of Julio R. Santos, a naturalized citizen of the United States, of Ecuadorian origin, who was arrested while residing in his native country on a charge of complicity in a revolutionary movement there. The Government of Ecuador contended that he had lost his American citizenship by a residence of more than two years in his native country under that article of the naturalization treaty with the United States which provides that a residence of more than two years in the native country of a naturalized citizen shall, subject to rebuttal, be construed as an intention on his part to remain there. The United States, however, having ascertained and established to its own satisfaction the intention [Page 81] of Mr. Santos to return to the country of his adoption, held its judgment in the matter to be conclusive and demanded for him the rights and privileges of a citizen of the United States.

The effect of the Salvadorian statute in question is to invest the officials of that Government with sole discretion and exclusive authority to determine conclusively all questions of American citizenship within their territory. This is in contravention of treaty right and the rules of international law and usage, and would be an abrogation of its sovereign duty towards its citizens in foreign lands to which this Government has never given assent.

Articles 39, 40, and 41, Chapter IV, of the law in question, purport to define the conditions under which diplomatic intervention is permitted in behalf of foreigners in Salvador whose national character is admitted. I regret that the Department is unable to accept the principle of any of these articles without important qualifications.

The article first enumerated provides that only in the event of a denial or a voluntary retardation of justice, and after having resorted in vain to all the ordinary remedies afforded by the laws of the Republic, may foreigners appeal to their Governments. The succeeding article defines what is meant by a denial of justice, and declares that such denial exists only when the judicial authority refuses to decide the matter before it, and that consequently the fact that a judge may have pronounced a decision, although it may be said to be iniquitous or in express violation of law, can not afford a ground for resort to the diplomatic channel.

Article 41 declares that delay in the administration of justice is not to be considered voluntary when the judge alleges any legal or physical impediment which he is unable to remove.

The comment made above on the law of matriculation is equally applicable to these provisions, that the denial to the foreigner of the right of appeal to his Government necessarily implies the denial in the particular case of his Government’s right to intervene; and as this denial is based upon the decisions of the tribunals of Salvador, the judgments of those tribunals are made internationally binding as to all questions of municipal or of international law coming before them.

It may be admitted as a general rule of international law that a denial of justice is the proper ground of diplomatic intervention. This, however, is merely the statement of a principle and leaves the question in each case whether there has been such denial to be determined by the application of the rules of international law.

By Articles 39, 40, and 41, as they are understood by this Department, the Government of Salvador would avoid this question, especially when the act complained of was committed by the authorities of the Republic in pursuance of its laws. This doctrine is novel to this Government, which has maintained and acknowledged in its treaties and otherwise as a settled principle of international policy, the rule that in cases of violation of international right by the authorities of a state in pursuance of municipal regulations, the final decision of the national tribunals sustaining the action of the authorities is a consummation of the wrong complained of and constitutes no bar to international discussion.

Should you find occasion to discuss with the Salvadorian minister for foreign affairs the subjects of this instruction, you will endeavor to impress upon him the views herein stated, in the interest of that complete understanding and friendly intercourse which should subsist between the Republics of this continent.

I am, etc.,

T. F. Bayard.